On August 2, 2010, I published a post titled, “Closing Time and Final Thoughts on the Future of Journalism.” At that time, I had enough of updating the blog daily and decided to hang my hat up – but not before leaving readers with some of my own thoughts about journalism, a major topic of this blog.

I signed off that post noting of journalism, “We need it for democracy to thrive. . . . Saving journalism is the greatest charge of this generation. It is up to us. While I don’t know what the end result will be, I hope that traditional journalism will thrive . . . .”

While I like the sentiment, that post was premature. Since then, I’ve published dozens of articles ranging from regulatory controls on the Internet to illegal searches of cell phones to freedom of speech. I’ve won an award and have been lucky enough to have some very bright folks offer me their insights on the blog. (I even won a FOIA appeal that reversed a FOIA officer’s holding that LWR did not constitute the “news media” for the purpose of FOIA!)

I started the blog at the beginning of the summer in 2010. I published a new article – with the hope of providing a no-nonsense, but fair point of view when it came to media, law, and technology news. That summer, I would leave my research fellowship at a non-profit every day and go to this quaint coffee shop in downtown Northampton, Massachusetts to research and write after work. I drank a lot of coffee – and I still do.

I’m not quite sure what prompted me to start going to that coffee shop and writing. I had always been interested in media and the following fall would enter law school. I think, in the end, it was just a desire to write and to learn about what I wanted to build my career around. It was the means.

(I was a bit bored too, and it seemed like something fun to do.)

In any event, I have a career now. Fittingly, I’m an attorney focusing on media law. In short, I’ve achieved the ends that I sought out to achieve by writing this blog. The means served their purpose: this blog taught me about media law issues and how to be a better writer.

Of course, I still love to read and write about media law issues. Luckily, I now get to spend my work days doing just that though as a result of having my dream job. By the time I’m home, I don’t have the energy left to do it all over again like I used to for the purposes of this blog. Instead, I like to write about other things, if I write at all.

It’s a bitter pill – saying goodbye to a blog that I have worked on for nearly four years. LWR has been a mainstay of my post-college career and, I think, set me on the course to achieving many of the things that I wanted to achieve after college. It is, in many respects, an idiosyncratic manifestation of the “me” I became after leaving college behind me. But, the time has come to step away from LWR.

Because LWR has focused so much on my main interest, I think it’s appropriate to end with my favorite passage from a U.S. Supreme Court case that touches on that interest: journalism and free speech. It’s a dissent by Justice Harlan in a case where a newspaperman was held in contempt after publishing articles and a cartoon suggesting that justices on the Colorado Supreme Court were not impartial.

In one of the first discussions digging into the meaning of the First Amendment in the Supreme Court, Justice Harlan explained, “It is, I think, impossible to conceive of liberty, as secured by the Constitution against hostile action, whether by the nation or by the states, which does not embrace the right to enjoy free speech and the right to have a free press.” I agree . . .

In short, neither Keller’s nor Greenwald’s approach is the only consideration on the road to journalistic salvation. That being so, how should journalists go about spreading the truth to the citizenry in a way that does not alienate the very citizenry that journalism is intended to serve?

by Matthew L. Schafer

Bill Keller of New York Times fame and Glenn Greenwald of NSA Leaks fame recently faced off in the Times. Others have summarized the exchange, so I will not do the same to any great extent. Frankly, you should skip the summaries and read the actual exchange.

To understand my point here though, you will need to know the broad outlines of their back-and-forth, which can be succinctly summarized. Keller believes, unsurprisingly, that journalists as part of their craft should objectively (or, if you prefer, impartially) report the news by not taking sides.

Greenwald, even more unsurprisingly, believes exactly the opposite. He rebuffs Keller’s suggestion that the Times is impartial, alleging instead that it is nationalistic. To Greenwald, the Times is no different than he is at the base level except to the extent that the Times took sides with the United States, instead of, like Greenwald, taking sides with the “truth.”

Both Keller and Greenwald argue that their brand of journalism is, ironically, “objectively” better than the other’s. Keller thinks that his version is better because it gives the reader a chance to decide whether, for example, waterboarding is torture without feeding the reader that loaded word at the outset. (Greenwald would just call it torture.)

Absent from Keller and Greenwald’s conversation, however, is any evidence that either approach actually helps readers. Isn’t that what we’re after at the end of the day? A more informed electorate? A citizenry that not only speaks truth to power but knows what it is they are speaking of in the first place?

Greenwald thinks his version better because it less impotent. It does not present information in the he-said she-said manner that we have all become so accustom to. Instead, it tests officials’ claims of truth in the fires of activism journalist, declaring at the end of the day whether those claims survived the forge or not.

Absent from Keller and Greenwald’s conversation, however, is any evidence that either approach actually helps readers. Isn’t that what we’re after at the end of the day? A more informed electorate? A citizenry that not only speaks truth to power but knows what it is they are speaking of in the first place? That is, what is truth and how should journalism trade in it?

In cases where journalists go after the truth and tell the reader that X is wrong but Y is right, there is little proof that the public is inclined to believe the journalist’s judgment as to the “ultimate truth.” We know from media studies, for example, that when readers are provided with information that is contrary to their views, they actually claw their erroneous beliefs closer to them. They hold on stronger and don’t let go.

We also know from media studies that readers are less likely to believe a news outlet that is foreign to them. They are less likely to believe a news outlet that is adverse to them. And, at the end of the day, what they do know is not that substantial and is mostly wrong.

Some of these may favor Keller’s approach (objectivity, for example, may be beneficial where the reader is unfamiliar with the source) and some may favor Greenwald’s (for example, his approach might be beneficial where someone agrees with him, but not otherwise.)

What Greenwald and Keller were really debating was what size of stick journalism should carry. They forgot though that it’s not only about the size of the stick but also who’s swinging, how sure they are in their own strength and ability, and whether they are aiming at the right target.

In short, neither Keller’s nor Greenwald’s approach is the only consideration on the road to journalistic salvation. That being so, how should journalists go about spreading the truth to the citizenry in a way that does not alienate the very citizenry that journalism is intended to serve?

Of course, some stories will be easier to cover than others – some are more susceptible of being proven true or false. For example, it is no doubt easier to prove that the NSA was, in fact, stealing information regarding French telephone calls than it is to prove that one domestic policy choice is necessarily better than the other. Indeed, the NSA leaks are easily verified, which imbues credibility in the information itself. (Greenwald has the documents after all, and they often accompany such stories as primary sources for the companion articles.)

But journalism does not equate only to publishing stories about leaked information, and leaked information is not always the information that the citizenry needs the most or that is most beneficial to the citizenry. There are state house stories about budgets, Supreme Court stories about the extent of a woman’s right to choice, and international stories about whether certain treaties are in the nation’s best interests.

Greenwald’s view on journalism doesn’t graft as easily onto these types of stories as it does to stories about NSA leaks. Indeed, in this context, the mantra of being critical to the government is rather less useful. In fact, it provides almost no road signs for a journalist to follow if presented with a situation where reasonable people come to different conclusions based on the same available information.

It certainly provides absolutely no road signs for how a journalist can best interpret civic information for the public. For example, even Greenwald’s activist/watchdog approach to journalism in the context of the NSA leaks, does not help us get at the deeper (and more important) civic question of whether, as a policy, we should be doing all that spying we know we are doing.

The point is that it is journalism’s job to keep an eye on the government – journalism a la Glenn Greenwald. But that is just one part of journalism’s job. On a broader level, journalism is a curator – and it is becoming more so every day. As Brian Stelter pointed out several years ago but not too long ago to be obsolete:

The ‘news’ that is not fit to print gets through to people anyway these days, through 24-hour cable gasbags, partisan talk radio hosts and chain e-mails, blogs and Web sites . . . What readers need now . . . are honest referees who can help ordinary readers sort out fact from fiction.

Stelter is right, we need “honest referees.” But what do we mean by that phrase? That is what Keller and Greenwald should have been debating. They were so focused on what type of journalism is the “better” type of journalism – activist journalism or activist-lite journalism, that they forgot the more interesting and important question: How can journalists be better stewards of the public’s trust?

I don’t have the answer, but whatever the answer is, certainly does not lie within the four corners of the now facile debate about objective journalism versus activist journalism.

Instead, each polemic will demand its own unique approach. Some claims may not be readily provable as either true or false. In such a circumstance the best journalism can do is debunk or debase those views that are surely outlandish, elevate those that wash the best with what we know at the time, and suggest to the reader that the “real” answer remains elusive.

On the other hand, some claims will be provable. In those instances, I think both Keller and Greenwald would agree that reporters should debunk false claims. It seems that they are unlikely to agree, however, as to how acerbic those debunkings should be. And, really, there is probably merit to both opinions.

In both cases though, whether journalists are hotly antagonistic to the government seems to be the least important question. Indeed, it is only important if journalists become so impotent that there is no watchdog press at all anymore. We’re not quite there yet – contrary to what many would argue.

In short, the real debate about journalism isn’t whether journalists should be objective or opinionated; patriotic or insubordinate; apologetic or antagonistic. Instead, the real debate is how journalists, recognizing the context of any given situation, can clearly and accurate deal in “truth” in such a way that all types of readers can walk away more knowledgeable about their world.

What Greenwald and Keller were really debating was what size of stick journalism should carry. They forgot though that it’s not only about the size of the stick but also who’s swinging, how sure they are in their own strength and ability, and whether they are aiming at the right target.

The OPEN Government Act of 2007 was passed to ensure that “anyone who gathers information to inform the public, including freelance journalist and bloggers, may seek a fee waiver when they request information under FOIA.”

Under the Freedom of Information Act, anyone can request information from the government. Depending on who requests the information, however, some requesters are given preferential treatment. Such treatment comes in a variety of forms, one of the most important being a waiver of fees if one is a “representative of the news media” for searching for and reviewing documents.

That term, “representatives of the news media,” was given an extremely narrow construction since the late 1980s, which required that a journalist show that he or she was working for an entity that was organized to disseminate news. As a result, Congress in 2007 attempted to broaden that definition to include all different types of journalists who are engaged in the function of gathering and disseminating news no matter if they have an institutional connection.

At the time, the Digital Media Law Project called the OPEN Government Act “striking” in that it would significantly “benefit bloggers and non-traditional journalists by making them eligible for reduced processing and duplication fees that are available to ‘representatives of the news media.’”

The Department of Justice was less than enthused by the Act. In fact, the DoJ vigorously opposed the Act. In the run up to its passage, the DoJ employed various adjectives like “grave,” “draconian,” and “misguided” to protest the Act’s provisions, including the provisions that were intended to give fee waivers to bloggers and independent journalists.

More specifically, the DoJ was concerned that discarding the institutional requirement would cause a flood of requesters to claim to be representatives of the news media because they had a some degree of demonstrable publication history or claimed that they intended to publish information resulting from the their FOIA request.

Moreover, the DoJ also worried that the Act, even where the requester showed no prior publication history, would require the DoJ to inquire into “the requestor’s stated intent at the time the request is made to distribute information to a reasonably broad audience,” which would eviscerate any limiting power the “representative of the news media” language once had.

In short, the DoJ was of the opinion that the Act expanded “the definition of ‘representative of the news media,’ and thereby exempts a larger class of requesters from the obligation to pay what can sometimes be quite significant fees assessed for searching for responsive documents.”

Despite the DoJ’s concerns, the Act passed. Nonetheless the DoJ has continued to ignore the Act’s provisions. In fact, the DoJ’s own Freedom of Information Act regulations still require that a requester show he or she is affiliated with a news organization to obtain a fee waiver.

Concerned by this fact, Reps. Darrell Issa and Elijah Cummings sent a letter to the DoJ, “[I]t is unknown whether agencies are complying with the Attorney General ‘s presumption of openness or the significant changes in fees and requester classes under the OPEN Government Act.”

The Representatives also noted, “[T]he OPEN Government Act broadens the types of requesters who may qualify for a fee waiver under FOIA. Unfortunately, not all agencies appear to be complying with FOIA’s fee requirements.”

In an about-face that would make even the best-flipflopper blush, the DoJ, now under the Obama administration, responded that the Act does not mean what the Act actually says it does and does not even mean what the DoJ said it meant at the time the Act was passed.

“As an initial matter, we respectfully note that it is not technically correct that, as your letter suggests, the OPEN Government Act ‘broadens the type of requesters who may qualify for a fee waiver under the FOIA,'” the DoJ said in response to the Representatives. “Rather, the OPEN Government Act codified the definition of ‘representative of the news media,’ which is a fee category.'”[1]

Thus, on the one hand, the DoJ explained on passage of the Act that it “exempt[ed] a larger class of requesters.” On the other hand, the DoJ told Congress that the Act does not necessarily “broaden[] the type of requesters who may qualify.”

The fact of the matter – technicalities aside – is that nearly everyone agrees that the OPEN Government Act was intended to liberalize the fee waiver provisions relating to representatives of the news media. Unfortunately, bloggers and independent journalists are still being denied such waivers. This amounts to willful blindness.

The OPEN Government Act was passed with a lofty goal in mind – namely to “grant[] the same privileged FOIA fee status currently enjoyed by traditional media outlets to bloggers and others who publish reports on the Internet.” Congress tried to achieve this goal by defining for itself who was a “representative of the news media.” It is time for the DoJ recognize this by revising its own regulations and granting fee waivers to people engaged in the act of journalism under whatever banner.

[1] It could be possible that the DoJ is pointing out that the Act did not add another whole category of requesters. But, this is form over substance. The Act, as the DoJ has recognized elsewhere did expand the applicability of the fee waivers to a larger class of representatives of the news media, e.g., independent journalists.

Setting the Scene

On March 5, 1976, just a few months before the nation’s bicentennial, Michael Lee Smith robbed Patricia McDonough, and, as a result, he would fundamentally alter the Constitution of the nearly 200 year old America. Indeed, three years after the robbery, the United States Supreme Court, in an appeal brought by Mr. Smith, would hold that citizens had no expectation of privacy in information that they give to third parties.

Mr. Smith found his way to the Supreme Court, because his otherwise anonymous robbery was foiled by his insistence on terrorizing his victim in the aftermath. See when Mr. Smith robbed Ms. McDonough, he didn’t quit there. Instead, he began sending her “threatening and obscene phone calls.” He also began stalking Ms. McDonough at her home.

The police eventually caught a break when they recorded a license plate number off a 1975 Monte Carlo. Mr. Smith owned a Monte Carlo. And, with this evidence, the police tracked down his home address and had Mr. Smith’s telephone company place a “pen register” on Mr. Smith’s phone. The police didn’t bother to get a warrant, even though courts were split as to whether the police needed one in such a case.

Just a day after the pen register was in place, it recorded a call from Mr. Smith’s home to Ms. McDonough’s. Based on this evidence, the police executed a search warrant on Mr. Smith’s house.

When the government sought to introduce evidence of the search of the home, Mr. Smith objected on the basis that it was impermissibly seized as a result of the warrantless pen register. His objection was denied, and he was convicted and sentenced to six years in jail.

The Oral Argument at the Supreme Court

Mr. Smith appealed his conviction all the way to the United States Supreme Court. Just over three years after the police department ordered the phone company to place a pen register on Mr. Smith’s phone, the Supreme Court would hear his case.

Howard Cardin, a Baltimore attorney, argued the case for Mr. Smith. Mr. Cardin’s tried to hit home his primary argument that the use of the pen register in this case required a warrant because it “was an action precipitated by the police department – not by the telephone company.”

“We compare it to the situation of a housekeeper coming into a hotel room. On the one instance, if she is coming in performing her duties and comes across something that is one situation,” Mr. Cardin explained.

“On the other hand, if she is contacted by the police department and [told], ‘Why don’t you go into that room for us and see what is there because we suspect something is going on.’ Then she is operating as the agent of the police department and is not properly on the premises at that time,” he followed up.

Mr. Cardin’s oral argument marched on uneventfully for another twenty minutes. In the end, the march was a futile one. He had very few of the Justices lend a helping hand. Instead, Justices Rehnquist and Stevens put Mr. Cardin through the ringer, asking several credulous questions undercutting Mr. Cardin’s oral argument. In short, the oral argument went poorly for Mr. Cardin and, of course, Mr. Smith.

Stephen Sachs, the Attorney General of Maryland at the time, had a much easier go of it in front of the Court.

“[The pen register] hears no sound; captures no words uttered into the mouthpiece . . . ; it captures no content; it achieves no communication . . . ; it doesn’t disclose if the call is completed; it doesn’t reveal who the caller is; it doesn’t say if the number is busy; it doesn’t say who the parties are; and it doesn’t tell the duration of the call,” Mr. Sachs began at the very outset in an attempt to limit the discussion.

In Mr. Cardin’s defense, Mr. Sachs arguably had better case law on his side. Indeed, Mr. Sachs was able to rely on the Court’s earlier cases that explained that a citizen has no reasonable expectation of privacy in information that he gives to a third party – the “misplaced confidence” cases, as Mr. Sachs put it.

Mr. Sachs was put on the ropes for a moment, however, when Chief Justice Burger asserted that the misplaced confidence cases were all cases where the defendant was engaged in criminal activity. In some prospective cases involving pen registers though, Chief Justice Burger explained that the activity might be lawful.

Undeterred, Mr. Sachs kept to criminal investigations using a pen register, “I’m saying, Your Honor, that it’s a risk [a person engaged in criminal activity takes] and its the kind of risk that this Court sanctioned in a great many cases. This Court sanctioned the risk . . . that when you confide in a friend – a trusted confidant – you run the risk that person will later go to the authorities.”

Mr. Sachs then went on to argue that the case had really been decided already my the Court’s prior jurisprudence and, in any event, citizens actually had more privacy in their communications as a result of technological telephone advances.

And then, in a very ironic twist in hindsight, Mr. Sachs addressed concerns “injected” into the case by Mr. Cardin about electronic surveillance.

“The specter of electronic surveillance . . . seems to me misplaced because what we have here is a phone company mechanism that is very much a part of their normal and routine operations that people understand and know are likely to be . . . breached . . . by the phone company which may then go to lawful authorities.”

And with that, Mr. Sachs ended his argument and must have known, when he took his seat, that he had won the day.

The Supreme Court’s Opinion

The impact of Mr. Sach’s argument was immediately apparent in the majority opinion written by Justice Blackmun. The resemblance was so striking that any closer and Justice Blackmun would have been plagiarizing the Attorney General’s argument.

“These devices do not hear sound. They disclose only the telephone numbers that have been dialed—a means of establishing communication. Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers,” Justice Blackmun wrote, quoting an earlier opinion.

Justice Blackmun then turned to Mr. Cardin’s various arguments, discarding each in turn. First, he rejected the idea “that people in general entertain any actual expectation of privacy in the numbers they dial.” And, for that same reason, found that Mr. Smith also did not have such an expectation.

Second, he found that even if Mr. Smith did harbor that expectation, his doing so wasn’t objectively reasonable. “This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties,” Justice Blackmun explained.

“This analysis dictates that petitioner can claim no legitimate expectation of privacy here,” Justice Blackmun continued. “When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.”

Just that quick, and Mr. Smith had lost his case. Indeed, it only took the Court six paragraphs to dispense with Mr. Cardin’s arguments. And, with that, the Court issued an opinion that it likely thought was relatively unimportant in the grand scheme of things.

The Third Party Doctrine Three Decades Later

Smith is still the law. There is no contesting that. (Although, there are convincing arguments to be had that the technological facts of Smith are so antiquated compared to today that it should be inapplicable – or, at least, less persuasive.)

Nonetheless, in a recent case, five Justices suggested, without holding, that information shared with third parties can still be private and still protected by the Fourth Amendment. The Court did not go all the way though. But, Justice Sotomayor, citing Smith offered a hopeful glimpse at the future:

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.

Just days after a Department of Justice report sought to “safeguard[] the essential role of a free press in fostering government accountability and an open society,” the Fourth Circuit Court of Appeals ruled in favor of the government, forcing New York Times Reporter James Risen to testify as to his source of classified information.

“There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source,” Judge William Traxler, who was nominated by George H.W. Bush and elevated to the Court of Appeals by Bill Clinton, wrote for a 2-1 majority.

The case, United States v. Sterling, stems from a 2006 book that Risen published where he outlined a botched attempt by the government to feed faulty nuclear blueprints to Iran. The leak itself is over ten years old at this point.

Although the government has substantial information suggesting that Jeffery Sterling, a former CIA operative, was Risen’s source of the classified leak, the DoJ, under both the Bush and Obama administrations, has attempted to force Risen to testify. The district court has refused to force him to do so on several occasions.

“The freedom of the press is one of our Constitution’s most important and salutary contributions to human history,” Judge Gregory wrote in dissent. “Reporters are ‘viewed ‘as surrogates for the public,’’ who act in the public interest by uncovering wrongdoing by business and government alike. Democracy without information about the activities of the government is hardly a democracy.”

In reversing the lower court decision, the Court of Appeals focused on a 1970’s Supreme Court case, Branzburg v. Hayes, which some argue rejected the idea that a reporter has a First Amendment right to not testify as to the identity of his source (commonly called a “reporter’s privilege“).

“The Branzburg Court considered the arguments we consider today . . . and held that, so long as the subpoena is issued in good faith and is based on a legitimate need of law enforcement, the government need not make any special showing to obtain evidence of criminal conduct from a reporter in a criminal proceeding,” the majority wrote. “The reporter must appear and give testimony just as every other citizen must. We are not at liberty to conclude otherwise.”

Judge Gregory, who at oral argument expressed his concerns with forcing a reporter to testify, dissented from the majority opinion. Instead, he argued that the First Amendment required the Court of Appeals to recognize a reporter’s privilege.

“The freedom of the press is one of our Constitution’s most important and salutary contributions to human history,” he wrote. “Reporters are ‘viewed ‘as surrogates for the public,’’” who act in the public interest by uncovering wrongdoing by business and government alike. Democracy without information about the activities of the government is hardly a democracy.”

Judge Gregory also rejected the majority’s reliance on the Branzburg case. Tracing the history of Branzburg in the lower courts, Judge Gregory argued that the opinion’s logic and a concurrence in Branzburg by Justice Powell called the usefulness of the case into doubt.

“Justice Powell’s concurrence [in Branzburg]and the subsequent appellate history have made the lessons of Branzburg about as clear as mud,” Judge Gregory wrote.

As such, Judge Gregory would have relied on the Fourth Circuit’s own case law and recognized the same reporter’s privilege in criminal cases that it had already recognized in civil cases. In such cases, the court asks “(1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information.”

With this most recent ruling, the Fourth Circuit joins the Fifth, Sixth, Seventh, and (arguably) D.C. Circuits in rejecting a reporter’s privilege outright in criminal cases. On the other hand, in the civil context, the First, Second, Third, Fourth, Fifth, Eighth, Ninth, and D.C. Circuits have all found a reporter’s privilege.

Judge Gregory quickly found that government had failed to make a showing under the first three elements, as it had collected substantial amounts of circumstantial evidence that was “no less probative than direct evidence.”

In the case of national security, like Risen’s, Judge Gregory would go beyond the original three-factor test and also inquire into “the harm caused by the public dissemination of the information[] and the newsworthiness of the information conveyed.”

As to the newsworthiness of the information Risen disclosed in his reporting, Judge Gregory found that the information was no doubt valuable to the citizenry. First, he argued that because “our nation’s focus has shifted to the nuclear capabilities of Iran,” the information is germane to current public debate.

He also found that “Risen’s investigation into the methods and capabilities of the United States foreign intelligence community with respect to the Iranian nuclear program is surely news of the highest import.”

Judge Gregory only dealt with the harm caused by Risen’s dissemination of the information in a cursory fashion, as it was not developed on the record below. While he recognized the government’s interest in protecting classified information, he also stated that “[t]he First Amendment interest in informed popular debate does not simply vanish at the invocation of the words ‘national security.’”

Judge Gregory concluded his opinion by lamenting that “the majority departs from [limited readings of] Branzburg . . . and our established precedent to announce for the first time that the First Amendment provides no protection for reporters.”

With this most recent ruling, the Fourth Circuit joins the Fifth, Sixth, Seventh, and (arguably) D.C. Circuits in rejecting a reporter’s privilege outright in criminal cases. On the other hand, in the civil context, the First, Second, Third, Fourth, Fifth, Eighth, Ninth, and D.C. Circuits have all found a reporter’s privilege.

The case will now head back to the district court where Risen will either be forced to testify or, likely, be held in contempt of court, unless the new DoJ regulations can be construed to protect Risen in a retroactive fashion.

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]]>https://lippmannwouldroll.wordpress.com/2013/07/19/fourth-circuit-orders-reporter-to-testify-as-to-source-of-national-security-leaks/feed/0lippmannwouldrollIs Greenwald a Journalist and Does It Even Matter?https://lippmannwouldroll.wordpress.com/2013/07/01/is-greenwald-a-journalist-and-does-it-even-matter/
https://lippmannwouldroll.wordpress.com/2013/07/01/is-greenwald-a-journalist-and-does-it-even-matter/#commentsMon, 01 Jul 2013 21:16:43 +0000http://lippmannwouldroll.com/?p=3403Continue reading →]]>Note: This is the second part of a multiple part series about the ability of the government to prosecute journalists for receiving and disseminating national security information. It comes in response to increasing public musings about the prosecution of journalists related to the Edward Snowden leaks.

Overall then, whether it be federal statutes or federal constitutional law, the debate over who qualifies as a “traditional journalist” does not matter as much as one might think, as many of the protections that reporters rely on could also be relied on by “activist” journalists.

by Matthew L. Schafer

In his June 30 article, Journalism, Even When It’s Tilted, the New York Times’ David Carr joined many others in exploring whether a journalist activist is, in fact, still a journalist. Or, whether the activism running through him somehow preempts the journalist aspect of his occupation. Unfortunately, he begins his discussion from a faulty premise – that journalists at the federal level are entitled to more First Amendment protection than any other citizen.

Speaking about the NSA Leaks reporter Glenn Greenwald, who has been called an activist by many opponents of his cause, Carr explained, “Sometimes, a writer’s motives or leanings emerge between the lines over time, but you need only to read a few sentences of Mr. Greenwald’s blog to know exactly where he stands. Mr. Greenwald is an activist who is deeply suspicious of government and the national security apparatus, and he is a zealous defender of privacy and civil rights.”

Carr then quickly (rightly) concludes that Greenwald is a journalist, but then trips up in the very next paragraph.

“Taxonomy is important, partly because when it comes to divulging national secrets, the law grants journalists special protections that are afforded to no one else. To exclude some writers from the profession is to leave them naked before a government that is deeply unhappy that its secret business is on wide display.”

In the case of national secrets, leakers would be tried in federal courts. There are a few federal statutes that are aimed at protecting journalists in that context. For example, there is a Privacy Protection Act that is supposed protect journalists’ work product from searches and seizures. There is also, of course, the federal Constitution and the First Amendment. Finally, there is the Department of Justice regulation that governs when the government can subpoena or question journalists, but that does not actually provide any enforceable protections – its advisory.

First, the Privacy Protection Act is not limited to “traditional journalists.” Simply, it applies to “any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.”

Thus, whether Greenwald, for example, is a journalist or activist is less important under the Act than whether he is intending to disseminate information to the public. Because he is intending to do so, he would get its protections (unless the government decided to allege that yet another journalist is a co-conspirator).

Second, the First Amendment provides citizens with the right to freedom of speech and the press. In this context, the Court has held that where someone publishes information that is both truthful and a matter of public concern (like Greenwald’s publication of the NSA leaks), the government’s attempt to “punish the publication of [such] truthful information seldom can satisfy constitutional standards.” Bartnicki v. Vopper, 532 US 514, 527 (2001). In such a case, the government must show a “need of the highest order.”

There is no reason to suppose that this constitutional rule only applies to “traditional journalists” and not to “activists.” Indeed, in the most recent case, the Supreme Court extended the privilege to a “radio commentator,” who was not a traditional journalist in the sense that term is normally used. He was more of an activist actually.

Third and more broadly, the Supreme Court has always shunned creating a constitutional distinction between the press and the public, where the press as an institution gets a bigger slice of the First Amendment pie than any other citizen.

Third and more broadly, the Supreme Court has always shunned creating a constitutional distinction between the press and the public, where the press as an institution gets a bigger slice of the First Amendment pie than any other citizen. As the Court has said in many cases in varying language, “[L]iberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods . . . .” Branzburg v. Hayes, 408 U.S. 665, 703 (1972).

Finally, under the First Amendment there is a so-called reporter’s privilege that is recognized in several United States Courts of Appeals even though the Supreme Court has never adopted it. This privilege allows reporters to refuse to testify in some cases as to the name of their constitutional sources.

It is also somewhat of a misnomer, as it is named the “reporter’s” privilege. It is a misnomer, because traditional reporters or journalists have no special claim to its protections. Instead, it generally protects anyone who can show that he or she is engaged in gathering and disseminating news.

The Ninth Circuit explained best why the taxonomy of journalist versus activist does not matter in the context of a “reporter’s privilege.”

The purpose of the journalist’s privilege . . . was not solely to protect newspaper or television reporters, but to protect the activity of ‘investigative reporting’ more generally. Thus, . . . it makes no difference whether “[t]he intended manner of dissemination [was] by newspaper, magazine, book, public or private broadcast medium, [or] handbill” because “[t]he press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.” Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993).

Overall then, whether it be federal statutes or federal constitutional law, the debate over who qualifies as a “traditional journalist” does not matter as much as one might think, as many of the protections that reporters rely on could also be relied on by “activist” journalists.

By failing to recognize this, Carr missed the mark with, at least, part of the very premise of his article. This isn’t to say that it is not important to discuss whether an activist should be less credible than a traditional journalist and ask why that should or should not the case – it is. But, before that question is even entertained, it is important to be clear just exactly what we are talking about when it comes to the definitional quandary spurred on by new forms of journalism.

Update 6:34 EST: Added hyperlinks in first and second paragraph and fixed date in first paragraph that incorrectly said Carr’s article was published on January 30 as opposed to June 30. The author regrets this error and is well aware of the irony of an error in a media criticism article.

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]]>https://lippmannwouldroll.wordpress.com/2013/07/01/is-greenwald-a-journalist-and-does-it-even-matter/feed/2lippmannwouldrollRevisiting The Pentagon Papers Case: Could Guardian Journalists be Charged under the Espionage Act?https://lippmannwouldroll.wordpress.com/2013/06/26/revisiting-the-pentagon-papers-case-could-guardian-journalists-be-charged-under-the-espionage-act/
https://lippmannwouldroll.wordpress.com/2013/06/26/revisiting-the-pentagon-papers-case-could-guardian-journalists-be-charged-under-the-espionage-act/#respondWed, 26 Jun 2013 22:39:25 +0000http://lippmannwouldroll.com/?p=3391Continue reading →]]>Note: This is the first part of a multiple part series about the ability of the government to prosecute journalists for receiving and disseminating national security information. It comes in response to increasing public musings about the prosecution of journalists related to the Edward Snowden leaks.

“[I]f anything, it seems that the intervening years – the forty-two years between the Court’s opinion in the Pentagon Papers and today – have rewritten much of what those Justices wrote in the balmy summer of ’71. The case – which was far from a complete victory – is much less friendly to press freedoms than many would like to remember.”

by Matthew L. Schafer

On June 30, 1971, Alexander Bickel, a lawyer for the New York Times and a constitutional law scholar, climbed the steps of the United States Supreme Court building on 1st Street (they were still in use then), N.E. in Washington, D.C. to argue that the Court should vacate the Second Circuit’s order preventing the Times from publishing the Pentagon Papers.

The case was New York Times v. United States. The Court had to decide whether the United States could properly seek to enjoin the publication of classified, but newsworthy material.

Bickel spoke second at oral argument and was faced with a wave of questions from the Court almost immediately. Responding to one from then Chief Justice Warren E. Burger, a Nixon appointee, Bickel explained, “I think Mr. Chief Justice that [the risk of uncertain harm to U.S. interests] is a risk that the First Amendment signifies that this society is willing to take, that is part of the risk of freedom that I would certainly take.”

The Court continued to push how far Bickel was willing to go down the path of protecting the publication of potentially dangerous or harmful speech. Justice Stewart finally put his finger on the inevitable question.

“Let us assume [that we are convinced] that [this] disclosure would result in the sentencing to death of a hundred young men whose only offense had been that they were 19 years old and had low draft numbers, what should we do?” Stewart explained. “You would say the Constitution requires that [the classified documents] be published and that these men die, is that it?”

Bickel surrendered the point: “I’m afraid I have — I’m afraid my — the inclinations of humanity overcome the somewhat more abstract devotion to the First Amendment in a [hypothetical] case of that sort.”

Bickel may have surrendered the point, but he won the day. Just four days after the oral argument, the Supreme Court found in his client’s favor. In a short opinion for the Court, the Justices ruled that the government had an exceedingly high burden to meet to prevent the Times from going to press and, in this case, “the Government had not met that burden.”

The Times started running news from the Pentagon Papers the next day. But that is, as they say, only part of the story.

Along with the Court’s unsigned opinion came six concurrences and three dissents. In this separate opinions for individual justices, the members of the Court argue back and forth whether the journalists involved in the publication could be prosecuted for their actions even if they Times could not be prevented from publishing the Papers.

The Concurring Opinions

Justices Black and Douglas wrote two concurring opinions focusing solely on their jointly held belief that the First Amendment was an absolute bar to the government infringing on freedom of speech or of the press.

As Black said, “Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.”

Neither Justice addressed whether the government could punish the reporters for publishing classified information after the fact even if they could not prevent the initial publication. Although, if they had, they most certainly would have responded in the negative.

Justice Brennan agreed with his more senior colleagues, Black and Douglas, writing, “Only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order. In no event may mere conclusions be sufficient.”

And then there were Justices White and Stewart. Their concurring opinions illustrate how close Bickel was to losing his case and how close the United States came to inheriting a much different First Amendment than the one we live with today.

As White wrote, “I concur in today’s judgments, but only because of the concededly extraordinary protection against prior restraints enjoyed by the press under our constitutional system. ”

White and Stewart did, however, give the government a small consolation – suggesting that perhaps the government could criminally prosecute the newspapers or reporters.

“[T]erminating the ban on publication of the relatively few sensitive documents the Government now seeks to suppress does not mean that the law either requires or invites newspapers or others to publish them or that they will be immune from criminal action if they do,” White cautioned.

The Justices even went on to suggest what sections of the Espionage Act the reporters might be violating, including § 793(e), which makes it unlawful to “willfully . . . transmits [a document relating to national security] to any person not entitled to receive it.”

They also offered up § 797, a similar section making it “a crime to publish certain photographs or drawings of military installations.”

“If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States, and must face the consequences if they publish,” White wrote. “I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.”

They were quick to add that they were “not, of course, saying that either of these newspapers has yet committed a crime.”

Justice Marshall wrapped up the concurring opinions with a rather boring diatribe about whether the Court had the power to issue an injunction where Congress had not granted them that power. He did, however, agree that White and Stewart’s view of criminality was at the very least “plausible.”

At this point then, three Justices were of the opinion that the Espionage Act made government prosecution of reporters who disclosed confidential information plausible. And then there were the dissents.

As the Pentagon Papers Case shows, as recently as 1971, five members of the Supreme Court suggested that reporters could be prosecuted for revealing classified national security information.

The Dissenting Opinions

Chief Justice Burger and Justices Harlan and Blackmun all dissented. They did not argue the merits of the case – whether the Times had the right to publish the classified documents. Instead, they argued that the proceedings in New York and in Washington, D.C. were too hurried.

“The time which has been available to us, to the lower courts, and to the parties has been wholly inadequate for giving these cases the kind of consideration they deserve,” Harlan wrote in an opinion joined by the Chief and Blackmun.

Even though the dissents thought the Court should not even rule on the merits because the process was bungled, the dissents – forced to make a decision – would have ruled in favor of the government:

“It is plain to me that the scope of the judicial function in passing upon the activities of the Executive Branch of the Government in the field of foreign affairs is very narrowly restricted,” Harlan wrote. “This view is, I think, dictated by the concept of separation of powers upon which our constitutional system rests.”

Although the Chief and Blackmun joined Harlan, they also penned two dissenting opinions of their own. Unlike the Harlan opinion, the remaining dissenting Justices opined on whether the journalists involved could be prosecuted for disclosing the Papers.

Blackmun, for example, said that he was in “substantial accord” with Justice White’s suggestion that journalists could be prosecuted under the Espionage Act for disclosing classified information.

At the close of his dissenting opinion, the Chief said similarly, “I should add that I am in general agreement with much of what MR. JUSTICE WHITE has expressed with respect to penal sanctions concerning communication or retention of documents or information relating to the national defense.”

In short, two of the dissenting Justices agreed with White’s suggestion that the reporter’s could be prosecuted.

A Foregone Conclusion?

The popular belief is that United States could never prosecute journalists for possessing or disclosing classified national security information. That proposition is far from settled. As the Pentagon Papers Case shows, as recently as 1971, five members of the Supreme Court suggested that reporters could be prosecuted for revealing classified national security information.

The Pentagon PapersCase also teaches something else: History does terrible things to society’s collective memory. Indeed, if anything, it seems that the intervening years – the forty-two years between the Court’s opinion in the Pentagon Papers and today – have rewritten much of what those Justices wrote in the balmy summer of ’71. The case – which was far from a complete victory – is much less friendly to press freedoms than many would like to remember.

Finally, the Pentagon Papers Case also tells us just how lenient and deferential a Court can be to the government when it comes to national security issues. Even though the government failed to carry the day, a number of Justices conceded that the scope of the Court’s power was exceedingly limited when it came to the executive’s power to dictate the Nation’s national security.

1971 was not the last time the Court dealt with ideas like prosecuting journalists, freedom of speech and national security, and the need for the executive to have wide latitude within which to operate when it comes to the national security. As will be seen, there is much more to the story than just the Pentagon Papers Case and a few disparate concurring and dissenting opinions. But, these next chapters of the story will have to wait for another day.

On Thursday and Friday of this week, Attorney General Eric Holder met with various news organizations after revelations surfaced about the DOJ’s aggressive investigations of national security leaks. During the investigations, the DOJ in one instance in federal court documents alleged that a reporter was a “co-conspirator” under the Espionage Act, and in another, the DOJ seized phone records without notice from the AP.

Reporters and news organizations have excoriated Holder, President Obama, and the DOJ for what they see as overreach that threatens long recognized principles underlying the freedom of the press. Even congressmen, who only recently called out the media for publishing national information leaked to them, have expressed concern about the Administration’s recent actions.

Congress, however, is not an innocent third party in this drama. Instead, Congress passed the Espionage Act that makes it illegal for unauthorized persons to receive or distribute classified information.

The Senate Judiciary Committee believed the government would also have to allege under Privacy Protection Act’s exception for Espionage Act violations that the reporter “inten[ded] to injure the United States or give advantage to a foreign power.” The Committee further explained, “For the purposes of this act the government shall recognize [this] standard, the requirement of intent, before utilizing the suspect exception for searches for materials sought under 18 U.S.C. 793.”

Congress also passed the Stored Communications Act that allows the government to seize reporters’ emails without a warrant and the Privacy Protection Act that was passed to protect reporters from warrants relating to their newsgathering but not if the government alleged that the reporter violated the Espionage Act – this is the so-called “suspect exception” to the Act.

To get around the cantankerous system Congress has set up then, the government had to allege that the reporter was a co-conspirator under the Espionage Act. If it did not, then the Privacy Protection Act would have kicked in and prevented the government from seizing the emails in the first place.

To Congress’s credit, at least the Senate Judiciary Committee that approved the Privacy Protection Act in 1980 thought that the government would have to do more than just allege that the reporter violated the Espionage Act.

The Senate Judiciary Committee believed the government would also have to allege under Privacy Protection Act’s exception for Espionage Act violations that the reporter “inten[ded] to injure the United States or give advantage to a foreign power.” The Committee further explained, “For the purposes of this act the government shall recognize [this] standard, the requirement of intent, before utilizing the suspect exception for searches for materials sought under 18 U.S.C. 793.”

At the time, the DOJ testified that the intent requirement – even though a higher standard – was nonetheless sufficient to protect national security.

The Committee Report concluded its discussion of the topic, cautioning, “For the government to squelch [the media’s use of leaks] by the forceful means of seizure, to which the press has no opportunity to object in advance, comes very close to forcing the issue of first amendment freedom versus the power of the government.”

The government was aware of this report when it filed its affidavit in support of its application for a search warrant. Indeed, the government quoted the report: “The purpose of the statute is to limit searches for materials held by persons involved in First Amendment activities who are themselves not suspected of participation in the criminal activity for which the materials are sought . . . .”

The government never alleged in its affidavit that the reporter intended to harm the United States. And, there are no facts known to the general public that indicate in any way that the reporter intended to harm U.S. interests.

Moreover, the government failed to direct the magistrate judge to the heightened intent requirement in the very same report that was just a few paragraphs away from the language it quoted. In short, the government deceived the magistrate judge at worst and negligently overlooked the intent of the legislators at best.

Moreover, the government failed to direct the magistrate judge to the heightened intent requirement in the very same report that was just a few paragraphs away from the language it quoted. In short, the government deceived the magistrate judge at worst and negligently overlooked the intent of the legislators at best.

Unfortunately, the press in the swirl of gut reactions and attendant yelling and screaming has overlooked this important fact. Not a single news outlet has reported it. To some extent, the omission is understandable; the press itself feels violated and has reacted as an interested party.

And, much as a lawyer who represents himself has an fool for a client, the press’s coverage of its own role in the DOJ controversy is so self-interested that the press has, in many respects, failed to dig into the important legal issues like the one outlined above, opting, instead, for visceral editorials.

The lack of any legal reporting is obvious. For example, a quick Google News search for “‘Privacy Protection Act’ and leak” returns only a handful of results. A similar search for “‘Espionage Act’ and leak” returns just a few more. And, only two results show up for “‘Stored Communications Act’ and leak.”

The problem with these results? All three of these statutes are fundamental to whether the press’s rights were actually violated or not, and, if so, how and to what extent.

Instead of informing the public about these statutes and how they affect both the public and the press’s rights to privacy, the press has chosen to throw all of its eggs into the considerably more ambiguous First Amendment basket, invoking its principles in broad terms.

Of course, it is easier to convey to the public the idea that the First Amendment has been violated, but the fact remains that it likely hasn’t – at least not under the Supreme Court’s current First Amendment jurisprudence, here and here. So, it is unclear how useful or informative it is to constantly invoke the First Amendment, while ignoring the more directly applicable statutes.

To be sure, the press needs to address both the statutory and constitutional issues in its meetings with Holder this week. There are some indications that the press is having these conversations with Holder. But, in these conversations, the press needs to focus more so on those things it can control or influence: the development of statutes like those above and a shield law.

The press should not only have these discussions with Holder, but also, remedy the current coverage, and include these discussions on the front page. Indeed, reporters should strive to explain these sometimes convoluted statutes to the public so the public knows what protections are currently afforded to its watchdog and how those protections can be improved.

In May of 2010, a special agent from the FBI filed a request for a search warrant relating to a leak of national security information that found its way into the news. The warrant, which was approved on May 28, 2010 and served on Google, ordered the popular email provider to produce certain emails from FOX News reporter James Rosen’s personal email account.

Notably, unlike the recent subpoena in the AP case, the warrant issued to Google was relatively narrow. It required Google only to hand over the reporter’s emails between the reporter and his alleged source and emails sent over a short, two-day period around the time the article was published.

Nonetheless, the warrant has sparked outrage among the press. As the Washington Post explained, quoting First Amendment lawyer Charles Tobin, “Search warrants like these have a severe chilling effect on the free flow of important information to the public. That’s a very dangerous road to go down.”

From what is publicly known, the government had not – since the passage of the Espionage Act in 1917 – ever alleged in a legal document that a journalist violated the Act – until now.

The FBI official in this case relied on three statutes to travel this dangerous road. First, a federal statute specifically allows the government to search through citizens’ emails. Second, another allows the government to do so even where the emails sought are communications between a reporter and confidential sources so long as the information relates to the disclosure of national security information under the third and final statute.

Under the Electronic Communications Privacy Act (ECPA), the first statute, the government must obtain a search warrant for emails only if the emails sought are less than 180 days old. If they are more than 180 days old, the government can obtain the records through a subpoena or a warrant. The advantage to the government in seeking a warrant after the 180-day period is that they do not have to provide prior notice to the party whose emails are sought.

Normally, journalists would be exempt from ECPA’s lenient standards for the production of emails under the Privacy Protection Act (PPA). The PPA was passed after the Supreme Court found no constitutional violation where police searched the newsroom of Stanford’s student newspaper with the hopes of seizing photos revealing criminality related to student protests.

Under the PPA, the government can search or seize a journalist’s work product or other documents if it is more likely than not that the reporter is “committing a criminal offense.”

There is an exception though: Even if the reporter is committing a criminal offense, it is unlawful for a government employee to search or seize a journalist’s work product if the only alleged offense “to which the materials relate consists of the receipt, possession, communication, or withholding of such materials.”

Thus, it might seem that illegal possession of classified information would still be protected by the PPA, where the only crime the government alleges is a reporter’s possession of classified information itself.

That is not the case. When the information that the journalist received, possessed, or communicated is related “to the national defense, classified information, or restricted data [under the Espionage Act],” the exception does not apply.

Thus, if the government can show that the journalist violated the Espionage Act then, it can apply for a search warrant for the reporter’s work product notwithstanding the initial appearance that the PPA would protect the reporter’s work product.

Congressman Jack Kemp (R-NY) summed up the PPA before its near-unanimous approval in the House, “[The Privacy Protection Act] would not prevent the police from conducting necessary searches, but simply require them to obtain a subpoena (which involves a court hearing where the newspapers can state their case) instead of a search warrant (where the newspapers have no say).”

The Espionage Act, which the PPA incorporates in part when reporters possess classified information, is a World War I law that makes it, among other things, unlawful for someone who “ha[s] unauthorized possession of [sensitive information] relating to the national defense . . . willfully communicates . . . the same to any person not entitled to receive it . . . [s]hall be fined under this title or imprisoned not more than ten years, or both.”

In Rosen’s case, the government sought Rosen’s emails in connection with an investigation of Stephen Jin-Woo Kim, a government employee who allegedly disclosed to Rosen the contents of a classified report relating to North Korea’s nuclear capabilities.

Under ECPA, the government legally could, and chose to, get a warrant for Rosen’s emails and, therefore, did not have to give Rosen notice of the warrant. Thus, Rosen did not have a chance to contest the seizure of his emails before the government forced Google to turn over the emails.

The FBI official wrote in an affidavit requesting a warrant against FOX News reporter James Rosen, “[T]here is probable cause to believe that the Reporter has committed a violation of [the Espionage Act], at the very least, either as an aider, abettor and/or co-conspirator of Mr. Kim.”

Despite ECPA, the government, under the PPA, was prohibited from obtaining a search warrant unless it could also show that Rosen received or possessed national security information in violation of the Espionage Act. In other words, to get at Rosen’s emails, the government had to allege that Rosen, as a reporter, violated the Espionage Act and, as such, was not deserving of the PPA protections.

That is exactly what the government officials did in this case, writing, “[T]here is probable cause to believe that the Reporter has committed a violation of [the Espionage Act], at the very least, either as an aider, abettor and/or co-conspirator of Mr. Kim.” And this is what is so chilling.

From what is publicly known, the government had not – since the passage of the Espionage Act in 1917 – ever alleged in a legal document that a journalist violated the Act – until now. Apparently, the closest the government ever came to making such an allegation came during the George W. Bush administration.

In 2006, Attorney General Alberto Gonzales said on This Week, “There are some statutes on the book which, if you read the language carefully, would seem to indicate that [prosecuting journalists for disclosing classified information] is a possibility.” The Administration never followed through on Gonzales’ Sunday morning musings.

The general understanding that reporters should not be prosecuted for or even alleged to be in violation of the Espionage Act was reflected in the Senate Judiciary Committee report on the PPA’s national security exception.

“The federal government has never employed a search warrant procedure [where a reporter possesses national security information] in large part because [it] present[s] a particularly sensitive policy problem,” the report reads. “Press possession of governmental documents generally occurs when the press is critical of official policy or practice, and tensions are likely to be high.”

The report continues, “For the government to squelch such criticism by the forceful means of seizure, to which the press has no opportunity to object in advance, comes very close to forcing the issue of first amendment freedom versus the power of the government. Broader search powers would be susceptible of abuse in chilling critical comment about the government.”

Due to these concerns, it was the Judiciary Committee’s intent that the national security exception to the PPA “would apply only if there was an allegation of an intent to injure the United States or give advantage to a foreign power.” In other words, the Committee thought it was signing off on a law that required that the government not only show that a reporter violated the Espionage Act, but also show that the reporter intended to injure U.S. interests.

In an ironic twist of fate, the government official’s affidavit seeking the search warrant against Rosen cited that legislative history for the proposition that the PPA was only intended to protect “persons involved in First Amendment activities who are themselves not suspected of participation in the criminal activity for which the materials are sought.” According to the government official, Rosen was not one of these innocent parties.

Less fatefully and likely more purposefully, the official did not direct the magistrate judge’s attention to the portion of legislative history that explained the intent requirement. Most damningly, the government official never even alleged that Rosen intended to “injure the United States or give advantage to a foreign power.”

Instead, the government official wrote only, “The text of the June 2009 article reflects that the Reporter’s knowledge and understanding that the information the Reporter had received was intelligence information the disclosure of which could be harmful to the United States.”

“Knowledge and understanding” alone though – without an intent to injure – would not have been enough for the Senate Committee that shepherded the law through Congress. The official, therefore, failed to satisfy the government’s “heavy burden,” according to the Committee, to merit a finding of this “exceptional circumstance.”

“Knowledge and understanding” alone though – without an intent to injure – would not have been enough for the Senate Committee that shepherded the law through Congress. The official, therefore, failed to satisfy the government’s “heavy burden,” according to the Committee, to merit a finding of this “exceptional circumstance.”

There are arguments to be made that the government’s actions in this case violated the First Amendment. As I have explained elsewhere, the Supreme Court’s newsgathering jurisprudence “demonstrate[s] a state of affairs that has created a nearly impenetrable area of constitutional law that is nigh impossible to make any sense of. Even more unfortunate, everyone knows that this is the case.”

This is not to say that constitutional concerns and arguments are not important; they are. But, they are also much messier than statutory ones and also have a predilection for spurring endless and somewhat unproductive debates.

Taking the language of the PPA together with legislative history creates a much clearer picture of the government malfeasance in this case than looking through the constitutional lens.

The Senate believed – without objection from any House reports that this author is aware of – that it crafted a law requiring the government to show that a reporter intended to harm the United States or intended to benefit its enemies. The government failed to do that here, and, therefore, the warrant should not have been granted and the government violated (albeit in good faith reliance on a warrant) the PPA.

On Friday, the Associated Press’s General Counsel Laura Malone received a letter from the Department of Justice. It informed the AP that the United States government had seized records related to twenty phone lines used by AP journalists and other employees. The records, which included personal cellphone and home phone records, were gathered over a two month period.

According to the Washington Post, the telephone records were seized in connection with investigations into recent national security leaks by government employees.

In a letter sent Monday, the President and CEO of the AP, Gary Pruitt, called the government’s actions a “massive and unprecedented intrusion” into the newsgathering process.

“There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters,” Mr. Pruitt wrote. “These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two – month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.”

“There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters,” Mr. Pruitt wrote.

In response to requests for comment, the DOJ told Business Insider, “We take seriously our obligations to follow all applicable laws, federal regulations, and Department of Justice policies when issuing subpoenas for phone records of media organizations. . . . Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.”

Mr. Pruitt is exactly right: the actions are unprecedented. While it is impossible to know exactly how many times the government has taken similar actions, only a handful of cases of news organizations and reporters have ever been challenged in the courts. This small number of cases making it to the courts is a testament to the normal restraint the government showed in the past when it sought material from reporters.

According to the Reporter’s Committee for the Freedom of the Press, the DOJ has only issued eighty-nine subpoenas, seeking the identities of reporters’ confidential sources, to reporters.

In a Freedom of Information Act request sent in January by Lippmann Would Roll to the U.S. Attorney General’s Office, the DOJ said that it only collected fifty-four subpoenas over the same twelve-year-period reported by the Reporter’s Committee. Surprisingly, even though the Attorney General must approve subpoena requests, the DOJ indicated in its letter to LWR that “The Office[] of the Attorney General . . . do[es] not maintain all media subpoena files.”

Currently, LWR has a FOIA request in to the DOJ’s Criminal Division, the division that most likely collected the AP’s telephone records.

The actions taken against the AP are especially disconcerting as, unlike targeted subpoenas seeking the name of a single confidential source, the DOJ’s collection of AP telephone records are, apparently, a blanket collection of all telephone records relating to the twenty phone lines, which include the phones of the AP’s bureaus in New York and Washington, D.C.

Whenever the DOJ seeks to subpoena a reporter to force him to identify his source or seeks the telephone records of reporters, it must follow an internal regulation, 28 C.F.R. § 50.10. Although the internal regulation does not create a private cause of action by which reporters could sue the DOJ for violating its terms, it does place supposed internal limitations on actions that U.S. attorneys can take when seeking records from the news media.

When a U.S. attorney seeks telephone records in a criminal investigation, he must show that a crime has occurred and that the information isn’t otherwise available from other sources.

The attorney must also show that he entered into negotiations with the news organization in an attempt to reach an amicable result and provided “reasonable and timely notice of the determination of the Attorney General to authorize the subpoena and that the government intends to issue it,” unless such notification would “pose a clear and substantial threat to the integrity of the investigation.”

Finally, “[t]he subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.”

(The form that the DOJ’s Tax Division uses for such requests was sent to LWR after a FOIA request earlier this year.)

In general and according to the DOJ’s regulation, “[T]he approach in every case must be to strike the proper balance between the public’s interest in the free dissemination of ideas and information and the public’s interest in effective law enforcement and the fair administration of justice.”

If the government failed to tailor its seizure of telephone records to those telephone lines relating to the leaks, which is likely as it apparently made no attempts to focus the investigation on a single reporter close to the leaks in question, it violated its own regulation.

Moreover, the government violated the regulation by failing to engage the AP in any negotiations, as it is completely unclear how negotiating with the AP in private would have damaged its leak investigation into a leak that had already occurred.

Unfortunately, that agreement, which stood inviolate for the majority of United States’ history, has now been violated – perhaps irreparably. The gravity of the situation cannot be overstated.

Finally, if the DOJ failed to subpoena non-press citizens potentially related to the leak before it went after the AP records, it violated the regulation’s requirement that it seek information from alternative sources before seeking the telephone records of a journalist.

In the event that a U.S. attorney did violate the regulation, he or she would be subject to “an administrative reprimand or other appropriate disciplinary action.” This remedy is, admittedly, not that satisfactory. Thus, it is necessary to look for other solutions to this abuse of power.

In 1978, the Reporters Committee, news organizations, and reporters brought a lawsuit against several telephone companies in an attempt to force those telephone companies to inform them whenever the government was seeking their telephone records. The case went up to the U.S. Court of Appeals for the District of Columbia, which rejected the reporters’ First Amendment argument.

“The Government’s good faith inspection of defendant telephone companies’ toll call records does not infringe on plaintiffs’ First Amendment rights, because that Amendment guarantees no freedom from such investigation,” the court found.

The court went on to emphasize that “it is clear that Government access to defendants’ toll-call records in no sense ‘abridges’ plaintiffs’ news-gathering activities within the meaning of the First Amendment. Not every Government action that affects, has an impact on, or indeed inhibits First Amendment activity constitutes the kind of ‘abridgment’ condemned by the First Amendment.”

Even though the D.C. Court of Appeals decided in favor of the government thirty-five years ago, in the intervening years some U.S. Courts of Appeals have found that reporter’s may be protected from such interferences in some instances. These conflicting findings have created a fragmented legal environment where some U.S. Courts of Appeals recognize strong First Amendment privileges for reporters and some don’t. In short, the issue is unsettled and begs for the U.S. Supreme Court to revisit it.

In the U.S. Courts of Appeals that embrace strong First Amendment protections, there is a good argument that the DOJ’s actions would be unconstitutional. These courts require that information collected be relevant to a criminal investigation. When the DOJ gave up on the targeted seizure of telephone records of, for example, the reporter who initially reported on the leak, it failed to entertain any questions of the relevance and scope of the information it was gathering.

Of course, however, this story goes beyond the mere violations of internal regulations and Supreme Court jurisprudence to shake the very foundation of an long and implicit agreement between the government and the press.

The breadth of the seizure also raises questions as to whether the government essentially “‘annex[ed]’ the news media as ‘an investigative arm of government.'” The phrase has never been defined with any degree of specificity because the government has never undertaken such an effort to the degree it did with the AP. In one famous case though, Justice Powell said that such a result would raise serious First Amendment questions.

Of course, however, this story goes beyond the mere violations of internal regulations and Supreme Court jurisprudence to shake the very foundation of an long and implicit agreement between the government and the press. In the past, the government has respected the division between the press and itself, understanding that both parties rely on each other to fulfill their functions effectively. Unfortunately, that agreement, which stood inviolate for the majority of United States’ history, has now been violated – perhaps irreparably.

The gravity of the situation cannot be overstated. It is completely antithetical to the very theory of our democracy and a free press. That theory is simple: for democracy to thrive, the press must be free to gather and disseminate news about the government to the citizenry without fear of reprisal or punishment.

As the Supreme Court said sixty-eight years ago in a case aptly captioned for the purposes of the present controversy, Associated Press v. United States, “The First Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society.”

For more coverage of subpoenas against journalists, please review these articles also available at LWR.